Breen v. Department of Transportation

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2001 Decided March 15, 2002

No. 00-5363

Victoria L. Breen,
Appellant

v.

Department of Transportation,
Federal Highway Administration and
Norman Y. Mineta, Administrator,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 97cv01003)

Kurt W. Hague argued the cause for appellant. With him
on the briefs were Theodore Whitehouse and Joseph G.
Davis.

Scott S. Harris, Assistant U.S. Attorney, argued the cause
for appellees. With him on the brief were Roscoe C. Howard,

Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.

Before: Ginsburg, Chief Judge, Rogers and Garland,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Victoria Breen, a former file clerk
at the Federal Highway Administration, brought this suit
alleging that she was discharged from her job in violation of
the Rehabilitation Act, 29 U.S.C. s 791 et seq. Breen alleges
that she suffers from mental and physical disabilities, but
would have been able to perform her work with a reasonable
accommodation. The district court granted summary judg-
ment against Breen on the ground that no reasonable accom-
modation would have enabled her to perform the essential
functions of her position. Because we find that there are
genuine issues of material fact as to Breen's ability to per-
form with an accommodation, we reverse the judgment of the
district court.

I

Viewed in the light most favorable to the plaintiff, the facts
are as follows. Breen began working as an office automation
clerk at the Federal Highway Administration (FHWA) in
1991, with duties that included the maintenance of office files.
For the first several years, she received "satisfactory" evalua-
tions. Some time in 1994, in connection with taking time off
for knee surgery, Breen developed a backlog of filing that she
was unable to reduce in a timely fashion--to the growing
dissatisfaction of her employer. Beginning in December
1994, the FHWA rated her performance as "needs improve-
ment" and implemented a series of "Performance Improve-
ment Plans" (PIPs), which, inter alia, admonished her to
accomplish her filing duties more expeditiously.

In November 1995, Breen provided the FHWA with letters
from her doctors that showed that she suffered from a variety
of physical and psychiatric disorders, the one most relevant to
the accommodation at issue in this case being obsessive-

compulsive disorder.1 The letter from Breen's psychiatrist,
Dr. Julie Redditt, also suggested certain accommodations.
Most relevant here were Dr. Redditt's suggestions for a
"structured time schedule which rarely varies without at least
a week's notice" and for an "[a]bsence of 'extra' or different
tasks requested during her work period, especially the filing
period." 1995 Redditt Letter at 4 (Nov. 15, 1995). The
psychiatrist stated that Breen "is able to perform each of the
required operations of her job as an office automation clerk,"
and that with the accommodations "Ms. Breen's performance
could return to its previous level." Id. at 4, 5. Dr. Redditt
suggested the same accommodations in a second letter dated
February 12, 1996. 1996 Redditt Letter at 1 (Feb. 12, 1996).

Breen herself proposed accommodations at various times
between the onset of her employer's dissatisfaction and her
termination. Chief among these was an "alternative work
schedule," pursuant to which she would have worked one hour
past normal business hours every day for eight days, in
exchange for one day off every two-week pay period--thus
maintaining a normal eighty-hour pay period.2 According to
Breen, the "hour of quiet time after business hours to do solid
filing" would have permitted her to complete her filing with-
out the interruptions that she found difficult to deal with as a
consequence of her obsessive-compulsive disorder. Rev.
Breen Decl. p 30; see id. p 27. Breen requested this accom-
modation a number of times. At the end of her second and
third PIPs in June and September 1995 respectively, Breen
asked for an alternative work schedule that would have
permitted her to work during the "quiet hours." Id. pp 6, 37.
Breen also presented her request for an alternative work
schedule at a meeting on February 29, 1996, id. p 18, and

__________
1 An orthopedist also diagnosed Breen as having knee problems
(chondromalacia and a laterally tracking patella).

2 Other accommodations requested by Breen included prior
notification of the work that she would be required to do on a given
day, a plastic floor mat to allow her stool to roll around the office
filing area, and training another employee to cover for her when she
was absent from the office.

again in writing one month later, Mem. from Breen to Perros
(requesting "Alternative Work Schedule or overtime (with
compensatory time)") (Apr. 1, 1996).

The FHWA declined to grant Breen the alternative work
schedule, or any of the other accommodations she requested,
and, on April 16, 1996, terminated her employment. One
year later Breen filed this lawsuit, alleging that her termi-
nation was unlawful under the Rehabilitation Act, 29 U.S.C.
s 791 et seq., because the FHWA had failed to reasonably
accommodate her disabilities. The FHWA moved to dismiss
or alternatively for summary judgment. Both sides filed
affidavits setting forth their versions of the facts, and Breen's
counsel filed an additional affidavit pursuant to Federal Rule
of Civil Procedure 56(f) requesting discovery. The district
court granted summary judgment against Breen, without
permitting discovery, on the ground that "no reasonable
accommodation will enable her to perform the essential func-
tions of her position." Breen v. United States Dep't of
Transp., No. 97-1003 (D.D.C. Sept. 11, 2000).

II

The Rehabilitation Act provides that "[n]o otherwise quali-
fied individual with a disability" may be discriminated against
by a federal agency "solely by reason of her or his disability."
29 U.S.C. s 794(a). The Act states that "[t]he standards used
to determine whether this section has been violated in a
complaint alleging employment discrimination under this sec-
tion shall be the standards applied under [certain provisions
of] the Americans with Disabilities Act [ADA]." 29 U.S.C.
s 794(d). The ADA, in turn, bars discrimination against a
"qualified individual with a disability ... in regard to ... the
... discharge of employees ... and other terms, conditions,
and privileges of employment." 42 U.S.C. s 12112(a). A
"qualified individual with a disability" is defined as "an indi-
vidual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires."

Id. s 12111(8); see 29 C.F.R. s 1614.203(a)(6) (EEOC Reha-
bilitation Act regulation).3 Accordingly, an individual with a
disability is "qualified" if he or she can perform the essential
functions of the position with a reasonable accommodation.
Carr v. Reno, 23 F.3d 525, 529 (D.C. Cir. 1994). The ADA
further defines the term "reasonable accommodation" to in-
clude "job restructuring [and] part-time or modified work
schedules." 42 U.S.C. s 12111(9); see 29 C.F.R.
s 1614.203(c)(2).

The district court granted summary judgment against
Breen solely on the ground that no reasonable accommoda-
tion would have enabled her to perform the essential func-
tions of her position. We review a grant of summary judg-
ment de novo, and--as we have done in reciting the facts
above--must view the evidence in the light most favorable to
the nonmoving party. Borgo v. Goldin, 204 F.3d 251, 254
(D.C. Cir. 2000). We may affirm a decision granting sum-
mary judgment only if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law. Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986)). There plainly is a genuine
and material factual dispute in this case.

Breen contends that her proposed alternative work sched-
ule would have permitted her to perform her responsibilities
by giving her time during the day in which her work would
not have been interrupted. In support of this assertion, she
offers her own affidavit, an affidavit from a disabilities expert,
Barclay Decl. pp 12-13, and the letters from her psychiatrist
referred to above. The FHWA responds with three reasons
why Breen's proposal would not have enabled her to perform
her responsibilities.

__________
3 In addition, the ADA defines the term "discriminate" to
include "not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless such
covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of such
covered entity." 42 U.S.C. s 12112(b)(5)(A); see 29 C.F.R.
s 1614.203(c)(1).

 First, the FHWA argues that Breen's proposed alternative
work schedule would not have "increased [her] total number
of hours," and hence would not have given her any more time
to accomplish her filing than she had had before. FHWA Br.
at 16. The FHWA is correct that the proposed alternative
work schedule, like Breen's prior schedule, would have totaled
only eighty hours per pay period. But this contention is
wholly unresponsive to the thrust of Breen's request for
accommodation. Her request was not for more time, but for
uninterrupted time. See Rev. Breen Decl. p 30 ("An alterna-
tive work schedule would have provided me with an hour of
quiet time after business hours to do solid filing, with no
interruptions."). The affidavits of Breen and her disabilities
expert, as well as the letters from her psychiatrist, describe
the nature of her problem as a difficulty in dealing with
unexpected interruptions in assigned tasks. See Rev. Breen
Decl. p 30; Barclay Decl. p 12; 1995 Redditt Letter at 4; see
also Rev. Breen Decl. p 27 ("Obsessive-Compulsive Disorder
makes it hard for me to refocus after changing tasks. It was
important for me to have an uninterrupted block of time to
complete the filing."). All declare that this problem could
have been overcome, and that Breen could have met her
responsibilities, if her schedule had been restructured to
provide not more time but uninterrupted time. Rev. Breen
Decl. p 30; Barclay Decl. pp 12-13; see also 1995 Redditt
Letter at 4 (stating that Breen could perform her job if there
were an "[a]bsence of 'extra' or different tasks requested
during her work period, especially the filing period").

Second, the FHWA contends that, prior to termination, the
agency had provided Breen with uninterrupted time, setting
aside a period during her workday that was devoted solely to
filing--to no avail. In support, the FHWA offers an affidavit
to that effect by a second-level supervisor. Perros Decl.
pp 18, 35. Breen, however, declares that the promised period
of uninterrupted work never materialized; that, to the con-
trary, she was constantly interrupted during the appointed
time, often with the approval of her direct supervisor. Rev.
Breen Decl. pp 25-29. For purposes of reviewing a grant of
summary judgment, we must take Breen's affidavit to be

true. See Anderson, 477 U.S. at 255; Borgo, 204 F.3d at 257.
As the FHWA acknowledged at oral argument, this creates a
factual dispute that cannot be resolved on affidavits alone.

Finally, the FHWA asserts that it could not have provided
the alternative work schedule Breen requested, which includ-
ed a biweekly day off to balance the extra hour on other days,
because her services were needed in the office every day.
Perros Decl. p 41. Breen disputes this, and asserts that the
FHWA allowed a number of other employees with similar
jobs in her department to work alternative schedules that
permitted them to be out of the office during normal business
hours. Rev. Breen Decl. pp 22-24.4 This creates a genuine
issue of material fact. See Walsh v. United Parcel Serv., 201
F.3d 718, 726 (6th Cir. 2000) (noting that employer's allow-
ance of medical leave to other employees created genuine
issue of fact as to whether grant of leave to plaintiff would
have constituted reasonable accommodation); Swanks v.
Washington Metro. Area Transit Auth., 179 F.3d 929, 934
(D.C. Cir. 1999) (observing that an employer " 'may not
obtain summary judgment by declaring it has a policy when
[the employee] may have evidence that [the employer] follows
the policy ... selectively' " (quoting Baert v. Euclid Bever-
age, Ltd., 149 F.3d 626, 632 (7th Cir. 1998)) (brackets in
original)); Woodman v. Runyon, 132 F.3d 1330, 1346 (10th
Cir. 1997) (holding that plaintiff demonstrated factual dispute
by providing evidence that employer had granted another
employee the requested accommodation in a similar situa-
tion).

Carr v. Reno, cited by the defendant, is not to the contrary.
In Carr, the plaintiff, a coding clerk at the United States
Attorney's Office, suffered from intermittent dizziness and
nausea that frequently forced her to miss work without
notice--477 hours in her first seven months alone. 23 F.3d at
527. Plaintiff sought an accommodation that the court de-
scribed as "an open-ended 'work when able' schedule." Id. at
531. The Office denied the request on the ground that Carr's
work, which involved coding papers relating to recent arrests

__________
4 In addition, Breen's Rule 56(f) affidavit specifically sought
discovery on this point. Dean Decl. pp 10(d), 11(c), (d).

in the District of Columbia, had a strict 4:00 p.m. deadline
each day--a point plaintiff conceded. Id. at 530. Under
those circumstances, we concluded that there was no genuine
dispute that the requested accommodation would not have
permitted Carr to perform the essential functions of her job.
Id. at 530-31.5

In this case, by contrast, the plaintiff has not conceded that
there was a critical element of her position--such as a daily
deadline--that rendered the accommodation she proposed
ineffectual. To the contrary, she has disputed that there is
any such critical element. Accordingly, the precedent that is
relevant is not Carr but Langon v. Department of Health and
Human Services, 959 F.2d 1053 (D.C. Cir. 1992). In that
case, plaintiff Langon, an HHS computer programmer strick-
en with multiple sclerosis, sought the accommodation of work-
ing at home. HHS refused to grant Langon's request, as-
serting that "due to the exactness required of computer
programmers like her, the short deadlines, and the frequent
face-to-face contacts, her position did not lend itself to work-
ing at home." 959 F.2d at 1060 (internal quotation marks
omitted). Langon countered with her own deposition testi-
mony, which "disagreed with HHS about the length of the
deadlines and the need for frequent face-to-face contacts,"
and which affirmed that her position did not require her to
work in the office. Id. That conflict, we said, created "a
genuine issue about whether, with the accommodation she
sought, Ms. Langon could perform the essential functions of
her position." Id. at 1061. We therefore reversed the dis-
trict court's grant of summary judgment.

Breen, like Langon, has offered evidence disputing her
employer's claim that the job restructuring she proposed was
incompatible with the essential functions of her position. She
has, therefore, raised a genuine issue of material fact as to
the ground on which the district court ruled against her: the

__________
5 Carr also noted that "it is the unusual Rehabilitation Act case
that, like this one, can be resolved against the plaintiff without
extensive fact finding." 23 F.3d at 531.

unavailability of any reasonable accommodation that would
have permitted her to accomplish her required tasks.6

III

In assessing the evidence on this appeal from a grant of
summary judgment we do not, of course, reach any conclu-
sions as to the ultimate merits of Breen's case. The FHWA
may yet be able to establish that it could not have reasonably
accommodated Breen's disabilities, or that her Rehabilitation
Act claim founders on other grounds. At this stage of the
litigation, however, it is apparent that a genuine issue of
material fact precludes summary judgment on the ground
stated by the district court.7 Accordingly, the judgment of
that court is reversed and the case is remanded for further
proceedings.

Reversed and remanded.

__________
6 We do not consider whether there are also genuine disputes
regarding the other accommodations that Breen requested, see
supra note 2, because the briefs are not clear as to whether the
others were intended as additional requirements or merely as
alternatives to the proposed job restructuring.

7 The FHWA argues that even if Breen raised a genuine
dispute regarding that ground, we should nonetheless affirm the
grant of summary judgment on another ground not relied upon by
the district court. The FHWA contends that Breen did not inform
it of her claimed disabilities and proposed accommodations in a
timely fashion, and thus failed to participate in good faith in an
interactive process that would have permitted the agency to deter-
mine the appropriate reasonable accommodation. Cf. 29 C.F.R.
s 1630.2(o)(3). Resolving reasonable inferences in Breen's favor,
however, she has raised a disputed question of material fact con-
cerning this ground as well by proffering evidence that it was the
FHWA that was responsible for the asserted delays of which the
agency complains. See, e.g., Rev. Breen Decl. p 7 (averring that it
took the FHWA almost a year to provide specific guidance as to the
kind of medical documentation it required).